Opinion
No. 52285-0-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-03023-4. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Amy R Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
William Howdeshell challenges his convictions for possession of methamphetamine and marijuana, arguing that that police did not obtain a valid waiver of his rights before questioning him.
Additionally, Howdeshell challenges the condition of his sentence requiring him to submit a DNA (deoxyribonucleic acid) sample under RCW 43.43.754 as an unconstitutional search. We affirm the convictions and sentence because Howdeshell waived his right against self-incrimination by voluntarily speaking to police and the State may constitutionally collect DNA samples from persons convicted of a felony.
FACTS
Auburn Police Officer Jeremy Crawford stopped a car in which William Howdeshell was a passenger because it had a faulty brake light. Crawford ran a records check and determined that the car was registered to Howdeshell and that the driver, Richard Pederson, had a suspended driver's license. Crawford arrested Pederson and found a pipe with marijuana residue in Pederson's pocket.
Crawford called Officer Douglas Faini to conduct a search with his K-9 partner, Tundra. Crawford directed Howdeshell and the other passenger, Kristy Maduro, out of the car. Faini searched the car and discovered two bags of marijuana and a bag of methamphetamine. Faini also found a wooden box containing a marijuana pipe, a package of Newport cigarettes, and a Fritz Company business card in a compartment underneath the cup holders. One of the officers placed Howdeshell in handcuffs and notified him that he was being arrested for violation of the Uniform Controlled Substances Act. Crawford read Howdeshell his Miranda rights. Howdeshell indicated that he understood his rights. Crawford then asked him about the drugs found in the car. Howdeshell denied knowledge of the drugs.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Crawford then spoke with Pederson and Maduro. Pederson stated that Howdeshell put the drugs in the compartment. Maduro confirmed that Howdeshell put something in the hidden compartment, but stated that she could not see what it was. Crawford again asked Howdeshell about the drugs, and Howdeshell continued to deny any knowledge of them. Crawford then told Howdeshell what Pederson and Maduro said. Howdeshell said that when the police stopped the car, Pederson gave him the drugs and told him to put them in the compartment.
Faini also gave Howdeshell Miranda warnings and asked him about the drugs. Initially, Howdeshell denied knowledge of the drugs. Faini told Howdeshell that they could examine the items for fingerprints. Howdeshell then stated that his fingerprints would probably be on the bags containing the drugs. He stated that Pederson gave him the drugs and told him to hide them in the compartment.
An officer transported Howdeshell to the nearby jail. Faini recontacted Howdeshell and again advised him of his Miranda rights. Howdeshell acknowledged that he understood his rights and signed a written waiver. Howdeshell told Faini that he smoked Newport cigarettes and that he had applied for a job at Fritz earlier that week. When Faini told Howdeshell that the cigarettes and business card were in the compartment, Howdeshell told Faini that he wanted to tell the `real truth.' Howdeshell told Faini that the wooden box was his and that he had received it about three months earlier. He stated that he put the box in the hidden compartment a long time ago and forgot that it was there. He also stated that he often used the compartment to hide marijuana but that the drugs found there that day did not belong to him. He stated that the cigarettes and business card must have fallen when he put the drugs in the compartment at Pederson's direction.
The State charged Howdeshell with one count of possession of methamphetamine and one count of possession of marijuana. The court held a CrR 3.5 hearing to determine if Howdeshell's statements to police after his arrest were admissible. The trial court determined that the statements were admissible and entered written findings of fact and conclusions of law.
A jury found Howdeshell guilty on both counts. The trial court sentenced him within the standard range. Included in his sentence was a requirement that he provide a biological sample for DNA analysis under RCW 43.43.754. Howdeshell appeals.
ANALYSIS
We first address whether the trial court erred in determining that Howdeshell's statements to police were admissible. Both the United States and Washington constitutions prohibit the State from compelling a person to make incriminating statements. U.S. Const. amend. X, Washington Const. art. I, sec. 9. The right against self-incrimination is applicable during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 460-61, 88 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). To protect the right against self-incrimination, the State must affirmatively advise the individual of his or her rights and give the suspect the opportunity to exercise those rights. Miranda, 384 U.S. at 479. A person may waive the right against self-incrimination if the waiver is knowing, intelligent, and voluntary. Miranda, 384 U.S. at 497. The State has the burden to prove, by a preponderance of the evidence, that the defendant made a valid waiver. Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 93 L. Ed. 2d. 954 (1987). The waiver of rights does not need to be express but, rather, can be implied from the circumstances of the interrogation. State v. Terranova, 105 Wn.2d 632, 646, 716 P.2d 295 (1986). An implied waiver exists if the defendant was fully advised of his rights, understood those rights, and then voluntarily spoke to police, absent any threats, promises, or coercion. Terranova, 105 Wn.2d at 646.
Here, both Crawford and Faini gave Miranda warnings to Howdeshell before questioning him. Both times, Howdeshell acknowledged that he understood his rights. While there was no specific statement that he was waiving his rights, Howdeshell voluntarily responded to the officers' questions. There is no indication that the police threatened or promised Howdeshell anything to elicit the statements. Howdeshell acknowledges that the facts of this case are very similar to the facts present in Terrovona, where the court found a valid implied waiver. Howdeshell, however, argues that the Terrovona court's holding is inconsistent with United States Supreme Court precedent and evidences a misunderstanding of the State's burden of proof. The holding in Terrovona, however, is consistent with Supreme Court precedent and is controlling. We therefore hold that the trial court did not err in allowing the State to use Howdeshell's statements in its case in chief.
Howdeshell also argues that because the statements at the scene should be suppressed, the statements at the jail must also be suppressed because the first statements were obtained through police coercion. If the police obtain inculpatory statements from a defendant in violation of Miranda, then obtain a proper waiver and the defendant makes further inculpatory statements, the subsequent statements must also be suppressed because they are tainted by the initial Miranda violations. Oregon v. Elstad, 470, U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). Because the first statements did not violate Miranda, this rule does not apply. As Howdeshell does not challenge the validity of his written waiver before the jailhouse statements, the statements are admissible.
Howdeshell also argues that RCW 43.43.754, which requires every person convicted of a felony to submit a DNA sample for creating a DNA database, violates his right under the Fourth Amendment to be free from unreasonable searches. This argument was rejected in, and is controlled by, our recent decision in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004).
Affirmed.
GROSSE, J. and AGID, J., concur.